North Bros. Ford, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1971

187 N.L.R.B. 766 (N.L.R.B. 1971)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Bros . Ford , Inc., and Automotive Salesmen's
Association (A.S.A.), Affiliated With S.I.U.N.A.
AFL-CIO. Case 7-CA-7882
January 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, BROWN, AND JENKINS
On July 31, 1970, Trial Examiner William J. Brown
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter Res-
pondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent North Bros. Ford, Inc., Westland,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.2
1 We are here affirming the Trial Examiner's finding that Respondent
violated Section 8(aX5) by refusing to meet for any purpose with the union
grievance committee We reject Respondent's defense based upon the fact
that the committee includes employees of competitors We do not reach or
decide the issue alluded to by the parties, but as to which this record
presents no facts giving rise to a justiciable controversy-i.e , under what
circumstances Respondent would be obligated to disclose to such a
committee assertedly confidential pricing information alleged to be
relevant to a particular grievance
2 In footnote 2 of the Trial Examiner's Decision substitute "20" for "10"
days
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act, came on to be
heard at Detroit, Michigan, on June 8, 1970. The original
charge of unfair labor practices had been filed on April 14,
1970, by the above-indicated Charging Party, hereinafter
sometimes referred to as the Union. The complaint herein
was issued May 8, 1970, by the General Counsel of the
National Labor Relations Board, acting through the
Board's Regional Director for Region 7; it alleges, and the
duly filed answer of the above-indicated Respondent
hereinafter sometimes referred to as the Company, denies,
the commission of unfair labor practices defined in Section
8(a)(5) and (1) of the Act.
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues. At the close of the taking of
testimony, General Counsel submitted oral argument;
subsequent to the close of the hearing counsel for the
Company filed a written brief. On the entire record herein,
on consideration of the oral and written argument
submitted, and on the basis of my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
The pleadings and evidence establish and I find that the
Company, a Michigan corporation, is engaged in the retail
sale, distribution, and service of new and used automobiles
with its principal office and place of business Westland,
Michigan. During the year 1969, a representative period,
the Company purchased and received at its Westland
operation new automobiles, parts, and other goods valued
in excess of $50,000 and shipped to its Westland operation
directly from points outside the State of Michigan. In the
same period the Company sold products valued in excess of
$500,000. The Company admits that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish and I find that the
Union is a labor organization within the purview of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Union has been, since February 1967, the certified
collective-bargaining representative of all new- and used-
car and truck salesmen employed by the Company. The
current collective-bargaining agreement runs for the period
March 7, 1969, to March 7, 1971. Under the agreement
salesmen are paid, at least in part, on the basis of
commissions computed as a percentage of company profit
on a sale It is stipulated that in the event of an employee
grievance relating to the amount of his commission it would
be necessary for the Union's grievance committee repre-
sentative to have access to company books and records.
The Union also represents employees of some 40 other
new- and used-car and truck dealers in the Detroit
metropolitan area.
Prior to November 1969 the Union had no permanent
grievance committee but designated employee grievance
representatives on an ad hoc basis. On November 25, 1969,
the Union established a permanent grievance committee of
eight members to handle grievances in their respective
areas. John Slobodnick, a salesman employed by the
Company and a member of the grievance committee, is
187 NLRB No. 106
NORTH BROS. FORD, INC.
assigned to handle grievances of employees at company
competitors in the west side of the Detroit metropolitan
area ; Emerson Rice, chairman of the union grievance
committee and a salesman employed by Tennyson
Chevrolet in Livonia, and Hugh Betts, a salesman
employed by Atchinson Ford, a dealer located in the area
also relatively near to the Company, are assigned to handle
grievances arising among company salesmen.
The evidence establishes that the new- and used-car and
truck retail sale business is highly competitive with the price
quoted by the dealer being a major factor in sales.
Company President North's testimony establishes that a
competing dealer who had knowledge of the Company's
pricing system would have an advantage in competition. As
of the time of the hearing union representatives had not
requested inspection of company records but North fears
that they might. The Company is willing to meet on
grievances with full-time union officials or with Union
designated company employees but refuses to meet on
grievances with any committee which includes a full-time
employee of a competitor.
Among the specific guarantees of the Act is the right of
employees to bargain collectively through representatives
of their own choosing. In Roscoe Skipper, Inc., 106 NLRB
1238, the employer refused to meet with a bargaining
committee established by the certified representative so
long as it included one George Phillips, a former employee
who had been active in organizing on behalf of the Union.
The Company's objections to Phillips' presence in negotia-
tions were (1) that a nonemployee should have no right to
sit in on negotiations, and (2) that Phillips could convey
secret information to competitors and injure the Compa-
ny's business. The Board adopted the Trial Examiner's
decision rejecting both employer contentions. With respect
to the possibility of disclosure of secret information to
competitors, the Board approved the Trial Examiner's
statement as follows:
As to Respondent's further contention that Phillips
might harmfully disclose to competitors information
acquired at bargaining sessions, it is quite apparent that
any genuine apprehension it had on this score was
based solely on conjecture. No one will deny that the
principle of collective bargaining tends to remove a
shield of secretiveness from an employer's business
operations. But even apart from this sometimes
unwelcome reality, no reason was advanced to impel
the belief that Phillips would be any more likely to
divulge Respondent's pay structure to employees
working in rival plants than would any other of
Respondent's 60-odd employees. Moreover, it would be
entirely unrealistic to assume that information concern-
ing the wages paid by the various business in the citrous
packing and distributing industry in central Florida
would not promptly become generally known by all
interested parties through the normal channels of
community conversation. Nor can much weight be
given to the argument that the mere participation of a
non-employee truckdriver in conference concerning
hours, wages and terms and conditions of employment
might result in a disclosure of secret methods or
processes to competitors. Assuming Respondent pos-
767
sesses any special expertise not shared by others, far
more informative access to its discovery than through
Phillips exists.
In enforcing the Board's order in Roscoe Skipper, Inc., 213
F.2d 793 (C.A. 5), the court said:
To select one's own representative or agent is a natural
right and the statute accords it in express terms. For the
employer, in the absence of exceptional circumstances
which do not appear here, to have a right of choice
either affirmatively or negatively as to any of those who
are to sit on the opposite side of the table from him
would defeat and nullify the law.
On the authority of the Roscoe Skipper case, I find and
conclude that the Company's refusal to meet and discuss
grievances with any union committee which includes
employees of a competitor constitutes an unfair labor
practice within the purview of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above and there found to constitute unfair labor practices,
occurring in connection with the Company's business
operations as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in unfair labor practices
affecting commerce, it will be recommended that it be
required to cease and desist therefrom and take such
affirmative action as appears necessary and appropriate to
effectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act and is and has been at all
material times the representative of all new- and used-car
and truck salesmen employed by the Company within the
meaning of Section 9 of the Act.
3. By refusing at material times to meet for the
discussion of employee grievances with any union commit-
tee which includes employees of a competitor the Company
has engaged in unfair labor practices within the purview of
Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is recommended that the Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to meet for discussion of grievances with any
union committee on the basis of the inclusion thereon of an
employee or employees of a business competitor or
competitors.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Notify the Union forthwith in writing that it will on
request meet for the discussion of grievances duly filed
under the existing agreement irrespective of the inclusion
on the union committee of employees of business
competitors.
(b) Post on the Company bulletin board a copy of the
attached notice marked "Appendix" I A copy of said
notice, on forms provided by the Board's Regional Director
for Region 7, shall, after being duly signed by the
Company's authorized representative, be posted immedi-
ately upon receipt thereof and be maintained by it
thereafter for a period of 60 consecutive days. Reasonable
steps shall be taken by the Company to insure that said
notice is not altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days2 from receipt of this Decision what steps
have been taken to comply with the terms hereof.
i In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
2 In the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 7 , in writing, within 10 days from receipt of this Order what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT refuse to meet and discuss grievances
with Grievance Committees of Automotive Salesmen's
Association (A.S.A.), affiliated with S.I.U.N.A.,
AFL-CIO, on the basis of inclusion on such committees
of employees of other dealers.
WE WILL meet on request with Grievance Commit-
tees of the aforesaid labor organization whether or not
they include employees of our competitors.
WE WILL NOT by refusing to meet with such
committees or in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights under the National Labor Relations Act, as
amended.
NORTH BROS. FORD, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.